Social Media s Impact On Criminal Law Kings County Criminal Bar Association October 17, 2013 by: Hon. Matthew A. Sciarrino, Jr.

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1 1 What is Social Media? Social Media s Impact On Criminal Law Kings County Criminal Bar Association October 17, 2013 by: Hon. Matthew A. Sciarrino, Jr., Digital platform for real-time interaction between multiple individuals 1.2 Virtually all websites and digital tools have social components, but there are a select few popular sites we think of when referring to social media 1.3 Some Stats: [http://thesocialskinny.com/100-social-media-mobile-and-internet-statistics-for-2012/ and 66 % of online adults are connected to one or more social media platforms. 50% of social media users say they check in to their favorite networks first thing in the morning. The number of smartphones shipments is expected to be almost one billion in % of American cellphone (mobile) users now have a smartphone 38% of people who use social media on mobile devices cite general browsing as their main activity. Half of all social media users are between 25 and 44 years old, but the age distribution varies widely across social networks. Reddit and Tumblr are among the youngest networks, with half or more of users under 35 years old. Twitter is about in the middle (55% of users age 35 or older) while 65% of Facebook users are over 35 (started exclusively with college students) and LinkedIn is the oldest network, with 79% of users age 35 and older. 1.4 Some More Stats Overall, 13% of digital news consumers follow news recommendations on both Facebook and Twitter More than twice as many digital news consumers follow news recommendations from Facebook than from Twitter (consistent across computers, smartphones, or tablets) Pinterest In February 2012 Pinterest had 10.4 million users. Pinterest is retaining and engaging users 2-3 times better than Twitter was at a similar time in Twitter s company history. 80% of Pinterests user base are women. Over 80% of Pinterest pins are repins (content already pinned being repinned by users). Page 1 of 67

2 1.4.4 Twitter In February 2012 Twitter had 500 million registered users (approximatly 288 million active). Users post 340 million tweets per day. Twitter accounts for approx 3.61% of referral traffic (according to Shareaholic study). 36% of Twitter users tweet at least once per day, with an average visit time of 11:50 minutes Twitter users send 175 million tweets each day 64% of users access Twitter via twitter.com. The top three countries on Twitter: USA (108 million), Brazil (33 million) and Japan (30 million) $259 million is Twitter s projected ad revenue in million accounts are added to Twitter every day Facebook In February 2012 Facebook had 850 million users. Facebook accounts for approx 26% of referral traffic. They announced their billionth user in October of More than 500 million people log in to Facebook each day and post 3.2 billion likes and comments. 31% check in more than once a day. 73% of users believe that another social network will eclipse Facebook Google+ In February 2012 Google+ had 90 million users. Google+ accounts for about 0.22% of referral traffic. Users average of 6 minutes on the site per log in. Just 29% of Google+ users are female. 44% of Google+ users are single. The top ten countries using Google+: USA (31%), India (14%), Brazil (5%), UK (4%), Canada (2.5%), Germany (2%), Indonesia (1.8%) and Italy, Mexico and Spain (1.7%) The top occupation is student (20%) The Google+ button is used more than 5 billion times each day. China and Iran block access to Google LinkedIn 25 Million LinkedIn Profile Pages Viewed Daily. 200 million registered users. 75 of the Fortune 100 use LinkedIn in their corporate process. LinkedIn adds 175,000 profiles per day. LinkedIn has seen 3 billion people searches since September (and should hit 5 billion this year). [http://therealtimereport.com/2012/10/19/social-networking-stats-25-million-linkedin-profile-pages-viewed-daily-rltm-sco reboard/] Page 2 of 67

3 1.4.8 Some Others: Qzone: 599 million monthly active users (TechCrunch); Sina Weibo: over 368 million (China Daily Renren): Renren over 170 million users (iresearch iuser Tracker); Tumblr: 77 million blogs (Tumblr) (and is biggest social media site for year olds); Instagram: 150 million users [http://www.engadget.com/2013/09/08/instagram-150-million-users/]; Tagged: 20 million unique monthly users (Tagged); Foursquare: over 25 million users (SmartBlog); Posterous: 15 million monthly users (Posterous); Reddit: 42 million unique monthly visitors (Reddit) Roger Yu, Minorities Rush to Twitter, Instagram, Smartphones (USA Today 2/14/13) (Breakdown of service selection use by race of user) [http://www.usatoday.com/story/tech/2013/02/14/pew-social-media-survey/ /] Francis Rey, Nearly 2 in 5 Tablet Owners Read Newspapers, Magazines on Their Devices (SocialBarrel 10/20/12) [http://socialbarrel.com/nearly-2-in-5-tablet-owners-read-newspapers-magazines-on-their-devices/45351/] Adam Popescu, Just Who Uses Social Media? A Demographic Breakdown, (Mashable 4/13/13) [http://mashable.com/2013/04/12/social-media-demographic-breakdown/] While law firms are historically slow to make use of newer technology, recent studies have shown that firms are now utilizing newer technology such as Facebook, LinkedIn and blogs for marketing purposes. A 2012 survey of lawyers and legal marketers by ALM Legal Intelligence found that: 70 percent of law firms maintain blogs; nearly 50 percent of firms state that social media had helped produce leans for new clients; Approximately 40 percent of law firms had garnered new business from social media; half the survey respondents stated that their firms plan to increase social media budgets; and over 20 percent stated that their firms already have a fulltime social media specialist on staff. In terms of social media s impact on In-House Counsel, a 2012 study found that 76 percent of In-House Counsels attribute some level of importance to blogs when looking for firms to retain. (See, Brian Dalton, This Social Media Thing Mightg Not Be A Fad, Law Firms Acknowledge, [Abovethelaw.com 8/7/13]). [http://abovethelaw.com/2013/08/this-social-media-thing-might-not-be-afad-law-firms-acknowledge/] 1.5 In one day on the Internet: Enough information is consumed to fill 168 million DVDs 294 billion s are sent 27% of total US internet time is spent on Social Networking Sites 15% of total US mobile internet time is spent on Social Networking Sites 2 million blog posts are written (enough posts to fill TIME magazine for 770 million years) 40 million visit Twitter 22 million visit LinkedIn 20 million visit Google+ Page 3 of 67

4 2 What is ESI? 17 million visit Pinterest 4.7 billion minutes are spent on Facebook 532 million statuses are updated 250 million photos are uploaded 22 million hours of tv and movies are watched on Netflix 864,000 hours of video are uploaded to YouTube More than 35 million apps are downloaded Hon. Matthew A. Sciarrino. Jr Electronically Stored Information (ESI). This term was adopted in the Federal Rules of Civil Procedure (FRCP), when they were amended in 2006 to implement rules pertaining directly to ESI. 2.2 Where the data is stored and how you get it are ESI issues. 2.3 ESI is any digital information stored in any medium from which it can be obtained, either directly or after translation into a reasonably usable form. ESI includes, , electronic files such as word processing documents, spreadsheets and presentations, databases and web pages. It can be found on magnetic disks (i.e., computer hard drives and floppy disks), optical disks (i.e., DVDs and CDs), and flash memory (i.e., thumb or flash drives) or even in a cloud. (See BENCH BOOK FOR NEW YORK STATE JUDGES PERTAINING TO ELECTRONIC DISCOVERY 2012) LexisNexis e-discovery Brief, Siri, How Much Discoverable ESI is on My S m a r t p h o n e? [http://www.lexisnexis.com/community/litigationresourcecenter/blogs/ediscovery/archive/2012/10/05/siri-how-much-disc overable-esi-is-on-my-smartphone.aspx] Glenn Hardy, New Issues in Discovery of ESI: Walking into the Cloud, (NYLJ 1/30/13) See generally, Crivella West Production Format Standard, Crivella West (Feb. 2, 2011) [http://www.crivellawest.com/files/cwpfs102.pdf.] By the end of the year, 120,000 New York state in-boxes are expected to be converted to the cloud, saving $3 million a year. This means that data management and storage for these New York State accounts will be handed by Microsoft - in the cloud. Ken Paulsen, 120,00 New York state government accounts converting to the cloud - Office 365, (SILive.com, 8/13/13) [http://www.silive.com/news/index.ssf/2013/08/120000_new_york_state_governme.html] 2.4 Stored Communications Act The Stored Communications Act ( SCA ) (18 USC 2701 et seq.) defines and makes distinctions between Electronic Communication Service ( ECS ) versus Remote Computing Service ( RCS ), and content information versus noncontent information. ECS is defined as any service that provides the user thereof the ability to send or receive wire or electronic communication. (See 18 USC 2510[15]). RCS is defined as the provision to the public of computer storage or processing services by means Page 4 of 67

5 of an electronic communications system. (see 18 USC 2711[2]). The Wire Tap Act (18 USC 2510[8]) defines content information as contents, when used with respect to any wire, oral or electronic communication, includes any information concerning the substance, purport, or meaning of that communication. In contrast, logs of account usage, mailer header information (minus the subject line), list of outgoing addresses sent from an account, and basic subscriber information are all considered to be non-content information. The importance of the distinctions deal with the mechanisms that must be used to acquire the data Mark S. Sidoti, Phillip J. Duffy & Paul E. Asfendis, How Private is Facebook Under the SCA?: Courts Struggle With Social Networking Questions Under 1986 Stored Communications Act, (NYLJ 10/4/10) Orin Kerr, Comment, A User s Guide to the Stored Communications Act, And A Legislator s Guide To Amending It, 72 GEO WASH L REV 1208 [2004] M. Alex Johnson, Judge Strikes Down Secrecy Provision of Controversial Counterterrorism Orders, NBCNEWS.com (3/16/13) [http://usnews.nbcnews.com/_news/2013/03/15/ judge-strikes-down-secrecy-provision-ofcontroversial-counterterrorism-orders?lite] Generally, the SCA prevents providers of communication services from divulging private communications to certain entities and/or individuals. As such, online providers such as Facebook, Twitter and Google+ are prohibited from releasing stored communications between their subscribers, even in response to civil subpoenas. Litigators must be aware of the limitations of E-Discovery, but should understand the process of how to attain information which may be open to E- Discovery. For Facebook, users can click the Download a copy of your Facebook data link, and the company will send the user the history of his/her interactions on the site. For Twitter, all tweets are catalogued with date and time stamps, and readily available to the public. However, if the user has changed privacy settings, only approved users can search the user s profile. Similarly to Facebook, Twitter also provides users with a way to view their archived files. Public tweets can also be located outside of the Twitter website by going to different websites such as AllMyTweets.net. The only information not available to the public from Twitter is the user s direct messages. In order to obtain direct messages, Twitter provides instructions on the website (https://support.twitter.com/articles/1406-posting-ordeleting-direct-messages). Google+ and YouTube also have a process to obtain information (https://support.google.com/takeout). 2.5 Smart-Phones are ediscovery Smallwood v State, (113 So. 3d 724 [Supreme Court of Florida, May 2, 2013] Court held that a police officer could not search a defendant s smart phone as a search incident to arrest because once removed from the defendant it could not be used as a weapon or be used to destroy any evidence on the phone. Therefore, the police officer had to obtain a search warrant before searching the phone. In making Page 5 of 67

6 its ruling discussed the ways that modern smart phones have evolved and held that given the ability of modern cell phones to be the database for and provide access to tremendous amounts of private data, they are entitled to a heightened expectation of privacy Christou v Beatport, (2013 US Dist LEXIS 9034 [US DC Colorado, January 23, 2013]) Court imposed sanctions on the defendant for failing to make a forensic image of his iphone after a litigation hold was in place. The defendant later lost the iphone before a specific request was made for production of text messages from the phone. Although the court found that the defendant s actions were negligent, not intentional, and there was no evidence that the texts would have contained relevant information, the court still imposed sanctions. The court declined to give an adverse inference to the jury, but permitted the plaintiff to introduce evidence of the litigation hold letter and to argue whatever inference they hoped the jury to draw Gary M. Pappas, Smartphones Can Be An E-Discovery Gold Mine or Sinkhole, (J DSupra Law News) [http://www.jdsupra.com/legalnews/smartphones-can-be-an-e-discovery-gold-m-68741/] 3 Inherent Risks with Social Media 3.1 Reputation The parents of hundreds of teenagers who threw an out of control party at former NFLer Brian Holloway s home are threatening to sue Holloway, after Holloway posted the teens identities on Twitter. Hundreds of teenagers broke into Holloway s upstate New York vacation home, and caused at least $20,000 worth of damage. Holloway was alerted to the party, at which copious amounts of drugs and alcohol were present, through the teens live tweets on Twitter. Rather than apologize to Holloway, the teens parents are now threatening to sue Holloway for damaging the kids reputations, and possibly the teens college plans by outing them on twitter. (Jeane Macintosh, Parents Want to Sue Ex-NFLer After He Outed Hard-Partying Brats, [New York Post 9/20/13] [http://http://nypost.com/2013/09/20/parentswant-to-sue-former-nfler-for-outing-their-hard-partying-brats/] and Jamie Uribarri, Ex-NFL Star Brian Holloway May be Sued by Parents of Teens Who Allegedly Thrashed His U p s t a t e N Y H o m e, [ N e w Y o r k D a i l y N e w s 9 / 2 0 / 1 3 ] ) [http://www.nydailynews.com/sports/football/ex-nfl-star-face-lawsuits-parents-house-crashing-teens-article ] 3.2 Embarrassment 3.3 Confidentiality 4 Substantive Civil/Quasi Criminal - Legal Issues 4.1 Defamation & Libel Page 6 of 67

7 4.1.1 Finkel v Dauber (29 Misc 3d 325 [Sup Ct, Nassau Co, 2010]) Defamation claim stemming from the defendants postings of disparaging messages about plaintiff regarding sexual activity with animals, drug use, having multiple sexually transmitted diseases, patronizing prostitutes and also doctored photos on a "secret" Facebook group called "90 Cents Short of a Dollar." A "secret" Facebook Group has no public content, does not appear on a Facebook members profile, and new members must be invited by an administrator. Since the statements were made obviously of an immature manner in an attempt for adolescents to outdo one another, the court held that no reasonable reader of the statements could have concluded that the posts were conveying facts about the plaintiff. Therefore the defamation claim failed. Additionally, the plaintiff raised a claim of negligent entrustment of a dangerous instrument against the defendants' parents, arguing that a computer was a dangerous instrument. However, the court dismissed this claim stating "To declare a computer a dangerous instrument in the hands of teenagers in an age of ubiquitous computer ownership would create an exception that would engulf the rule." Medcalf v. Walsh, (2013 US Dist LEXIS [US DC SDNY, Apr. 9, 2013]) This case briefly addressed the spousal privilege as applied to in the context of a defamation litigation. The Plaintiff's claim was in part based on the contents of the Defendant spouses' communications, which the Plaintiff had accessed and discovered in her capacity as assistant to one of the Defendants. In dismissing the complaint, the Court held that under NY defamation law "all communications between [spouses], on any subject, [a]re absolutely privileged based on [the spouses'] status as a married couple" and therefore could not satisfy the publication element of the defamation claim. 4.2 Sexual Harassment Targonski v Oak Ridge, (2012 WL [Dis Ct ED Tenn July 18, 2012]) The plaintiff in a hostile environment sexual harassment case complained of sexual rumors circulating about her in the workplace. She testified: I m a Christian and I strive really hard to be a moral person. So for someone to start thinking of me as someone who has orgy parties at my house while my son is home, that s severely humiliating to me. The defendant attempted to show that the rumors could not have been subjectively offensive to the plaintiff given posts from the plaintiff s Facebook page that discussed orgies to be filmed by her husband Janon Fisher, Technology Sends Perv-cam Cases Soaring (NY Daily News 10/29/12) [http://articles.nydailynews.com/ /news/ _1_pen-camera-cell-phone-cameras-subway-station] 4.3 Eavesdropping Page 7 of 67

8 4.3.1 Lack of third party liability Hayes v Spectorsoft Corp. (2009 WL [Dist Ct ED Tenn Nov 23, 2009]) Plaintiff s ex-spouse used a keylogger created by defendant to eavesdrop on plaintiff s instant messages, and browsing activities. Defendant created two pieces of software used by plaintiff s ex-wife. Plaintiff alleged violations of the Electronic Communications Privacy Act in addition to a negligence, and products liability claims. With respect to the ECPA claim, the court held that the plaintiff could not prove that the defendant had the conscious objective to cause the unlawful surveillance and disclosure, despite the fact that the defendant marketed the software to spouses who were conducting surveillance. The court also relied on the fact that the person who installed the keylogger clicked through a terms of use agreement which contained a representation that the software would only be installed on computers which the user owned, or was authorized to be installed on. The court granted the defendant s motion for summary judgment and dismissed the case because the software could be used to conduct multiple lawful activities and the defendant did not conduct the eavesdropping themselves but merely provided the tools to do so. (See also, Bridget Rhode and Sara Crasson, Government Access to and Data Stored Online, (NYLJ 1/29/13) Is Google Eavesdropping? A federal judge in California has held that Google must face a lawsuit which alleges that the company has illegally opened and read s sent through its Gmail service. Such action would constitute a violation of Federal Wiretapping Statutes. To defend its actions, Google has stated that machines, not people automatically scan s to target unwanted advertising. Google further argued that the claims should be dismissed as users agree to let the company read s by accepting the service s terms and privacy policy. Judge Lucy Koh disagreed, holding that no one had consented to Google s reading of for the purposes of creating user profiles or providing targeting advertising. Jessica Guynn, Google Must Face Suit Over Scanning of Messages in Gmail, Judge Rules, Los Angeles Times (9/26/13), [http://www.latimes.com/business/technology/la-fi-tn-google-gmail-scanning-lawsuit-judge-ruling ,0, story] 4.4 Sexting and Other Forms of Civil Harassment Aaron Kase, Facebook Ignores Harassment Complaints (Law.com 5/21/12) [http://blogs.lawyers.com/2012/05/facebook-ignores-harassment-complaints/] A female social activist received threats over Twitter after successfully lobbying for the addition of Jane Austen to the 10 pound note in Britain. As a result of community outrage, Twitter reiterated that it will suspend accounts that are in violation of its rules. In addition, Twitter stated that it would expand its Report Abuse button to the Twitter website as well as the Android app. Nick Schifrin, After Outcry, Twitter Expands Abuse Button (ABC News, 7/30/13), [http://abcnews.go.com/technology/outcry-twitter-expands-abuse-button/story?id= ] Page 8 of 67

9 4.5 Privacy Concerns Nick Bilton, Disruptions: Seeking Privacy in a Networked Age, (NY Times Bits 10/14/12) [http://bits.blogs.nytimes.com/2012/10/14/seeking-privacy-in-a-networked-age/] An Ohio middle school teacher has been placed on unpaid administrative leave after a photo of some of her students surfaced online with duct tape across their mouths and a caption that said "Finally found a way to get them to be quiet!!". This is the first disciplinary case the Akron board of education has dealt with involving social media. Of concern in this case is whether the students' privacy has been violated. The teacher has stated that the students in the photo put the duct tape on their mouths as a joke. However, this photo may cost the teacher her job at a disciplinary hearing which has yet to be scheduled. (See, Ohio Teacher Facing Firing After Posting Facebook Photo of Students Wearing Duct Tape, ABC News [1/22/13]). [http://abcnews.go.com/us/ohio-teacher-fighting-job-posting-duct-tape-photo/story?id= ] 5 Criminal Law 5.1 Eavesdropping NY Penal Law Article 250 (Eavesdropping/Tampering etc) Computer tampering- People v Versaggi, (83 NY2d 123 [2012]) Defendant was charged with computer tampering, which prohibits "intentionally altering" "computer data" or a "computer program." The defendant had been charged with accessing Eastman Kodak Corporation's computers to turn off its telephone systems but argued that he only implemented instructions already within the computer and therefore did not alter any computer data or program. The Court of Appeals rejected that argument, and held that the statute did not require the defendant to actually modify the computer code itself or alter the functionality of a program. The court further held that as long as the defendant took steps to make the program operate in a different manner than it normally would have, the actions amount to "altering" under the statute. As the purpose of the program was to provide telephone service, turning off the telephone systems is causing the program to operate in a different manner than normal. Therefore defendant's conviction was upheld Witness to a fatal shooting threatened by gunman s friends on Facebook. After an encounter on the street where the gunman s friend called the witness a snitch and told her there was a price on her head, the friend wrote about her on his own Facebook page and asked others to post her picture. Other similar cases include: tweeting a photo of a witness taken while she was on the witness stand; posting a photo of a witness statement on Facebook and instructing friends to kill all rats ; intimidating a witness through comments on Facebook. While witness Page 9 of 67

10 harassment is nothing new, the speed of social media makes it easier. In order to successfully prosecute cases of witness intimidation, prosecutors must obtain phone subscriber information, IP addresses, internet account information, social media account information and then link the information to the suspect. In an effort to prevent intimidation from taking place, some courts have taken to banning cell phones in the court room. Kevin Davis, Witness harassment has gone digital, and the justice system is playing catch-up,(aba Journal, 8/1/13) [http://www.abajournal.com/magazine/article/witness_harassment_has_gone_digital_and_the_justi ce_system_is_playing_catch] 5.2 Stalking - See, Cynthia Fraser, et al, The New Age of Stalking: Technological Implications for Stalking, 61 JUVENILE AND FAMILY COURT JOURNAL ID Theft Rodolfo Ramirez, Online Impersonation: A New Forum for Crime on the Internet, 27 CRIMINAL JUSTICE #2:6 (American Bar Association, Summer, 2012) H.S. Student Charged With Identity Theft For Setting Up Phony Twitter Account In Name Of Schools Boss (The Smoking Gun 1/23/13) [http://www.thesmokinggun.com/buster/student-busted-for-fake-twitter-account ] Arthur Buono, Interpol Chief s ID Stolen via Facebook (Lawyers.com 9/20/12) [http://blogs.lawyers.com/2010/09/interpol-chiefs-id-stolen-via-facebook/] 5.4 Unlawful Access to Another s Account NY Penal Law Article (Unauthorized Use of Computers) Unauthorized access of a computer- People v Klapper (28 Misc.3d 225 [Sup Ct, NY Co, 2010]) Defendant was charged with unauthorized use of a computer. A person is guilty of this offense when they knowingly use, cause to be used, or accesses a computer, computer service, or computer network without authorization. It was alleged that the defendant installed a keylogging software on a computer at the defendant s office and instructed other employee s to use only that specific computer. The computer was used for work related purposes, as well as the accessing of personal accounts. The keylogging software recorded the passwords for the accounts accessed. The defendant allegedly was then observed accessing another s and printing copies of data contained within the account. However, the court found the facts alleged in the complaint to be insufficient to establish that the defendant acted without authorization. The allegations failed to allege that the defendant had notice of any limited access to the computer or account. They also failed to allege that complainant had installed a security device to prevent unauthorized access or use. The court held that in order Page 10 of 67

11 to sufficiently establish the element of without authorization the factual allegations had to clearly set forth facts to support that the defendant had knowledge or actual notice that the particular access was prohibited or that the defendant circumvented some security device or measure installed by the user. Therefore the case was dismissed as the accusatory instrument was facially insufficient A federal jury convicted Sarah Palin intruder David C. Kernell of felony destruction of records to hamper a federal investigation and misdemeanor unlawfully obtaining information from a protected computer. He was acquitted of felony wire fraud. During the 2008 presidential election, Kernell hacked into the Yahoo account of Palin, who was then running as the Republican vice presidential candidate with John McCain. Palin's address was published in several new stories about her alleged use of a private for public business. (KnoxNews.com 4/30/10) [http://www.knoxnews.com/news/2010/apr/30/judge-presents-dynamite-charge-stuck-palin- -/] Aftermath: After defendant David C. Kernell s conviction, defendant filed a motion for judgment of acquittal and a motion for an arrest of judgment. Both were denied by the United States District Court for the Eastern District of Tennessee. Defendant then appealed his conviction for obstruction of justice to the Court of Appeals for the Sixth Circuit. On January 30, 2012, the Judge affirmed the conviction and sentence. Defendant then submitted a petition for rehearing en banc, which was also subsequently denied on March 27, See, Verizon Employee Arrested for Stealing Naked Pictures Off of a Customer's Cellphone (Gawker 11/4/12) [http://updates.gawker.com/post/ /verizon-employee-arrested-for-stealing-naked-pictures] Unauthorized Access- US v Aleynikov (737 F Supp 2d 173 [USDC SDNY 2010]) Defendant worked for Goldman Sachs as a computer programmer in its high-frequency trading division. In April 2009, defendant accepted a position with a hedge fund in Illinois that hoped to enter the high-frequency trading business. On his last day at work at Goldman Sachs, the defendant transferred hundreds of thousands of lines of source code to a server in Germany, and later downloaded those files to his home computer and a flash drive. The home computer and flash drive were subsequently brought to defendant's new employer. The defendant was charged with violating the Computer Fraud and Abuse Act and the National Stolen Property Act. As the defendant had been allowed to use the source code from his computer at Goldman Sachs, the District Court dismissed the CFAA charge holding that accessing a computer "without authorization" simply means doing so without permission. However, the District Court convicted the defendant of transportation of stolen property in interstate commerce in violation of the National Stolen Property Act, holding that the source code constituted "property" within the meaning of the Act. However, in US v Aleynikov (676 F3d 71 [2d Cir, 2012]) The the Second Circuit reversed the conviction on the grounds that the high frequency trading source Page 11 of 67

12 code was not a "good," "ware," or "merchandise." But, on August 1, 2012, less than six months after the defendant's release from federal custody, New York swore a felony complaint against him based upon the same conduct underlying the federal case. This complaint charged the defendant with Unlawful Duplication of Computer-Related Material" as well as "Unlawful Use of Secret Scientific Materials in state court People v Walker (Michigan Ct of Appeals, Unpublished, Nos /304702, Dec 27, 2011) A man accessed his wife s without her consent. They were separated. He was charged with violating the Michigan s computer unlawful access law, MCL , which is similar to the federal Computer Fraud and Abuse Act (CFAA). He argued that as a spouse he had the right to access his wife s . The three-member appellate panel said Michigan s computer hacking law has no spousal exception, and that the law as written applies to Walkers case. [http://coa.courts.mi.gov/documents/opinions/final/coa/ _c304593_54_ opn.pdf] 5.5 Sexting and the Production, Possession, & Distribution of Child Porn In People v Kent, (19 NY3d 290 [2012]) the defendant was convicted, in a nonjury trial in Dutchess County of two counts of promoting a sexual performance by a child and 134 counts of possessing a sexual performance by a child. The Court of Appeals, held that: merely accessing and displaying Web images of child pornography does not constitute procurement of child pornography; cached images of child pornography stored on defendant's computer can serve as evidence of defendant's prior viewing of images that were, at one time, resident on his computer screen; evidence that Web page containing image of child pornography was automatically stored in the cache in allocated space of defendant's computer that was accessible to defendant was insufficient to support convictions for promotion or possession of child pornography; but evidence regarding child pornography video and images of child pornography found in the unallocated space of defendant's computer was sufficient to support convictions for promotion and possession of child pornography People v Holmes, (956 NYS2d 365 [App Div 4th Dept 2012]) This case involved whether Penal law section applied to sexually explicit text messages sent to a 16 year old girl. In this case, Holmes pleaded guilty to sending an obscene message to a teenage girl. On appeal, the defendant argued the indictment was defective since his alleged offense did not involve "any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another" as the crime is defined by statute. Section , the statute the defendant was indicted under, makes reference to communications through a computer and not through a telephone. However. the Court held that the defendant's conduct fell within the intent of the statute. Therefore the defendant's guilty plea was upheld. Page 12 of 67

13 5.5.3 For Further Reading: Karla Baumler, Sexting: Is It Teenagers Being Teenagers? Or is it Child Porn?, 30 CHILDREN S LEGAL RIGHTS JOURNAL #4:43 (Winter 2010) Todd A. DeMitchell & Martha Parker-Magagna, Student Victims or Student Criminals? The Bookends of Sexting in a Cyber World, 10 CARDOZO PUB. L. POL'Y & ETHICS J. 1 (Fall 2011) Bryn Ostrager, SMS. OMG! LOL! TTYL: Translating the Law to Accommodate Today's Teens and the Evolution from Texting to Sexting, 48 FAM. CT. REV. 712 (October, 2010) 5.6 Sexual Predators - Borough President of Staten Island convinced Facebook to pull a group called Pediphiles are People Too from Facebook (See Staten Island Advance 10/16/12) [http://www.silive.com/news/index.ssf/2012/10/at_urging_of_staten_island_bor.html] 5.7 See, 9 Most Bizarre Facebook Related Crimes (Oddee.com 8/10/11 [http://www.oddee.com/item_97855.aspx] 5.8 Brady. United States v Meregildo (No. 1:11-cr WHP [USDC SDNY, 2013) In this case Colon, a defendant, raised a Brady defense stating that the government had violated its duty to disclose information favorable to the defense. The Defendant was one of 16 defendant's charged with being part of a racketeering enterprise in the Bronx. That defendant and two others were convicted of racketeering, murder, narcotics and firearms offenses. Also charged in the Case was Devin Parsons, an admitted murderer and drug dealer who cooperated with the government and testified at trial against the others. While incarcerated, Parsons arranged to have a friend create a Facebook page for him under the alias "Devin Morris" with an unknown address. From behind bars, Parsons used a cell phone to update the account and make several posts, including one about his cooperation that read "I'm not telling on nobody from HARLEM but I can give up some bx niggas that got body's." After the cell phone was seized, another defendant in the case informed the government that he had obtained Parson's Facebook posts under the alias. Colon then moved to compel the government to obtain the entire contents of the Facebook page, and further sought to compel the government to direct Parson's friend who had set up the account to provide the log on information. The Judge ruled that the agency relationship between a cooperating witness and a prosecutor is narrow and warrants imputation in fewer circumstances. Therefore, in most cases, a cooperating witness should not be considered part of the prosecution. As the cooperating witness cannot be said to be a member of the prosecution, the Court held that no Brady violation has occurred. 5.9 Sentencing People v Lucas Robert Armstrong, (2011 Kalamazoo Circuit Michigan 2011) - The defendant was accused of beating another young man to within an inch of his life. He plead no contest. Pending sentencing the defendant posted on his Page 13 of 67

14 Facebook page: Shouldn t drink when stressed. On the other hand, it s a good mixture for knocking kids the f--- out, b----. Defendant sentenced to 75 days in jail and was ordered to post an apology on Facebook and to warn others of danger of alcohol for 30 days after his release. Man Sentenced for Assault Ordered to Post Facebook Apology, Warn Others Against Drunkeness. Published on Michigan Live, 6/13/11 [http://www.mlive.com/news/kalamazoo/index.ssf/2011/06/man_ordered_to_apologize_on_fa.html] Malaysian social activist had to apologize 100 times on Twitter, a settlement with a magazine publisher in a defamation case. Fahmi Fadzil, an opposition politician's aide and respected commentator on social issues, claimed on Twitter that his pregnant friend had been poorly treated. (See, Sean Yoong, Malaysia Defamation Case: 100 Apologies on Twitter [AP 6/2/11]) [http://www.boston.com/business/technology/articles/2011/06/02/malaysia_defamation_case_100_ apologies_on_twitter//] Another issue that develops is the disallowing of convicted people from using social media or other technologies while on post release supervision or as a condition of the sentence In US v Hilliker,(469 Fed Appx 386, 2012 US App Lexis 7494 th th [USCA 5 Cir, April 13, 2012]), the 5 Circuit held that a sentencing court did not commit plain error by imposing near absolute restrictions on computer and internet access in a case where the defendant had been convicted of a non-computer related offense, specifically failure to register under the Sex Offender Registration and Notification Act. (See, Art Bowker, How to Impose Technological Restraints on Criminal Offenders [Law Technology News 7/31/12] [http://www.law.com/jsp/lawtechnologynews/pubarticleltn.jsp?id= &how_to_im pose_technological_restraints_on_criminal_offenders] th In Re Andre B (unpublished) (Super Ct No J [4 App Dis, Ct of App, CA 10/31/12]) Juvenile defendant was put on probation for two years for molesting a two year old and restraining a thirteen year old while committing a lewd act. The defendant's parole conditions included that he not be allowed to maintain a social networking page, enter chat-rooms, be allowed to access a computer without supervision by someone who is aware of his probationary status, and further barred from using the computer for any other purpose that is not school related. These provisions were overturned on appeal on First Amendment grounds due to the fact that the restrictions "are not tailored to Andre's convictions for violating another's personal liberty, willfully annoying and molesting another, unlawful use of force, and lewd and lascivious conduct, or the juvenile court's dual goals of rehabilitation and public safety." However, the court did uphold the provision barring the defendant from viewing porn sites and from using a computer knowingly containing "any encryption, hacking, cracking, keystroke monitoring, security testing, or steganography."(see, Court: Teen Juvie Can't Be Barred From Page 14 of 67

15 Social Media - Reason 24/7 [Reasons.com 11/9/12]) [http://reason.com/24-7/2012/11/09/court-teen-juvie-cant-be-barred-from-soc] John Doe v Marion County Prosecutor (No , USCA 7th Cir. 1/23/13) This case was a class action brought by the ACLU on behalf of a man who served 3 years for child exploitation and other sex offenders who were since off of probation. Indiana enacted a law that sex offenders were prohibited from accessing social networking sites like Facebook or instant messaging/chat room programs. The court held that such a blanket prohibition is not so narrowly tailored to enforce the state's strong interest of protecting children. Instead, the law prohibits substantial protected speech. The court was careful to note that its decision does not entail that sex offenders cannot have any internet restrictions Orders of Protection On Jan. 25, an Ohio magistrate found a man s Facebook post had violated the protection order and offered him a choice: go to jail for 60 days and pay a $500 fine, or pay back child support and post an apology on his Facebook page for 30 days (Byron v Byron, Court of Common Pleas, Division of Domestic Relations, Hamilton County, OH [Case No. DR , Jan 26, 2012]) A Tennessee woman, Shannon Jackson, arrested for poking on Facebook, because it violated the terms of her OP, which qualifies as a misdemeanor. See, Shannon D. Jackson: Woman Arrested for Facebook Poke (HuffingtonPost Tech O n l i n e 3 / 1 8 / 1 0 ) People v Fernino, (19 Misc3d 290 [Crim Ct Richmond Co, 2008]) Accusatory instrument stating that defendant used Myspace to send message indirectly to complainant contained sufficient nonhearsay factual allegations that defendant violated temporary order of protection issued by Family Court in favor of complainant stating that, [defendant] shall have NO CONTACT (sic) with [complainant], although complainant simply could have denied request In Sweden, a man was convicted after sending a Facebook friend request to an individual who had a restraining order against him. The court found that "a friend request represents an active choice with the aim of making contact. That can't be seen as a minor violation." See Man Convicted for Facebook Friend Request (The Local, 8/14/13) [http://www.thelocal.se/49632/ ] Beaston v Ebersole (986 A2d 876 [PA Super Ct 2009]) The court reversed the order returning computers to defendant because there was a sufficient nexus between his computers and his criminal contempt conviction for violation of a Page 15 of 67

16 "protection from abuse" order. Defendant had sent a disturbing to complainant's sister using an address comprised of complainant's initials, her job title, and the word "killer." He also created a Myspace page which identified him as the "Skankn8er," obviously referring to the complainant as "skank" and "n8er" as a shortened form of "terminator." That Myspace page also played the song "I Used to Love Her But I had to Kill Her," while portraying the headline "Justice is coming." Defendant "friended" several of complainant's friends who alerted her to the postings Probation See, Laurie L. Baughman, Friend Request or Foe? Confirming the Misuse of Internet and Social Networking Sites by Domestic Violence Perpetrators, 19 WIDENER LAW JOURNAL 933 [2010] Louisiana banned all convicts from accessing internet; struck down under First Amendment. Later required all sex offenders to note status on Facebook, which will cause Facebook to ban them US v Smalcer (2012 WL [USCA 6th Cir, 2012] (unreported) probationer has no 5th amendment right against self-incrimination, therefore ok to force him to give up Facebook password Contempt A woman slammed into a car carrying four teenagers in July and left the scene. Parents of the teens were upset to see this post on Facebook: My dumb ass got a DUI and I hit a car LOL on Facebook, according to Louisville NBC affiliate WAVE. LOL is an abbreviation for laughing out loud. When she appeared in court after the July 20 accident, the judge told her to delete her Facebook account. She did not take it seriously, and was charged with contempt of court and placed in jail for two days. She later deleted her account. (ABC News 9/18/12) [http://abcnews.go.com/blogs/headlines/2012/09/lol-facebook-post-after-dui-accident-lands-woman-in-jail/] 5.13 Increased Law Enforcement Use See, DOJ Publication, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations Computer Crime and Intellectual Property Section Criminal Division [http://www.justice.gov/criminal/cybercrime/docs/ssmanual2009.pdf] See Social Media Case Examples, supra for more examples In a June 2012 report, the Electronic Frontier Foundation (EFF) evaluated 18 major web companies to discover which of them will work hardest to protect your data, should the government request information. To see how the various social Page 16 of 67

17 media groups handle the requests as well as their policies the report is available online: [https://www.eff.org/sites/default/files/who-has-your-back-2012_0.pdf] Cell phone service providers last year responded to 1.3 million demands for consumer information such as caller location and text messages. Eric Lichtblau, Wireless Firms are Flooded by Requests to Aid Surveillance, THE NEW YORK TIMES (Nov. 25, 2012) Police Departments now posting mug shots for Wanted Persons on Pinterest. (Nitasha Tiku, Cops Now Pinning Mugshots to Pinterest Because the Police Can Be Aspirational Too [Betabeat 1/11/13]) [http://betabeat.com/2013/01/cops-now-pinning-mugshots-to-pinterest-because-the-police-can-be-aspirationaltoo/] Josh Saul and Leonard Greene, Cops Monitor Facebook Use to Bust Nearly 50 Gang Members, (NY Post 9/12/12). Two gangs in Brooklyn friended their enemies, and used Facebook for anti-social networking by traded threats online. Cops busted nearly 50 gang members after monitoring their activity online and listening in on phone calls over the course of a three-year war between rival factions in East New York Oregon Teen Arrested After Posting 'Driving Drunk' Facebook Status, (ABCNews, 1/4/13) [http://abcnews.go.com/blogs/headlines/2013/01/oregon-teen-arrested-after-postingdrivin-drunk-facebook-status] Chicago's Gang Violence Fueled Through Social Media (ABC News 10/19/12) [http://abcnews.go.com/us/chicagos-gang-violence-fueled-social-media/story?id= ] The National Center for Missing and Exploited Children says social media has played a key role in tracking down the 98.5 percent of missing children who were the subject of Amber Alerts from 2005 to (Courtney Sherwood, Cops Monitor Social Media for Clues, Crimes [Lawyers.com Blog 8/9/12] LAPD Posts 'Grim Sleeper' Photos To Facebook, Twitter In To Help Identify Possible Victims [http://www.huffingtonpost.com/2012/10/19/grim-sleeper-lapd-facebookphotos_n_ html?ncid=edlinkusaolp ] The Promises and Pitfalls of Social Media-For the Police A nationwide survey conducted in 2012 by the International Association of Chiefs of Police s Center for Social Media Findings found that of 600 law enforcement agencies polled, 92 percent use some form of social media. In many cases, social media is enhancing the type of work, and the means available to police officers while trying to conduct investigations. Police now routinely review social medial profiles of suspects or victims and create undercover social identities to gather information. Page 17 of 67

18 Police departments have also taken to social media to positively further community relations. While mostly positive, social media provides certain challenges to police departments as well. Nancy Kolb, who oversees the International Association of Cheifs of Police Center for Social Media states that many officers are not trained for social media interaction, and that certain instances of poor judgment can put themselves and their departments in challenging situations. Emily Siner, The Promises and Pitfalls of Social Media-For the Police, NPR (9/22/13), [http://www.npr.org/blogs/alltechconsidered/2013/09/22/ /the-promises-and-pitfalls-of-s ocial-media-for-police] Stephanie Rabiner, Here's What Facebook Sends the Cops When They Subpoena Your Activity (FindLaw's Technologist Blog, 4/11/12) [http://blogs.findlaw.com/technologist/2012/04/heres-what-facebook-sends-the-cops-when-they-subpoena-your-activity.html] Rocco Parascandola, Want to Know What the City s Finest Know? Now, There s an App for That! (NY Daily News 1/4/13) [http://www.nydailynews.com/new-york/city-finest-app-article ] Simone, Weichselbaum, Crime Fighters in Brooklyn Using Social Media to Catch Dumb Gangsters Flaunting Illegal Weapons (NY Daily News 2/6/13) [http://www.nydailynews.com/new-york/cops-social-media-guns-streets-article ] Twitters Guidelines for Law Enforcement, are available at: https://support.twitter.com/entries/41949-guidelines-for-law-enforcement/ Senate OKs Warrantless Snooping. (Buzzfeed Politics, 12/26/12) [http://www.buzzfeed.com/andrewkaczynski/senate-approves-warrantless- -snooping] (& with the new law you can post your Netflix viewing history) Joe Coscarelli, New York Man Arrested for Weapons Arsenal After Facebook Freak-Out Over Gun Control, N. Y. Magazine (2/21/13,) [http://nymag.com/daily/intelligencer/2013/02/lawrence-mulqueen-facebook-freak-out-over-guns.html] Peter Crusco, The Bits and Bytes of Jurisdiction (NYLJ 2/26/13) David Knowles, New York Mom Charged with Child Endangerment After Hiring Strippers to Perform Lap Dances at Her 16-Year-Old Son's Birthday Party, Police Say, Daily News (2/19/13), [http://www.nydailynews.com/news/national/cops-mom-hiredstrippers-son-16th-article ] Evgeny Morozov, How Facebook Could Get You Arrested, (The Guardian 3/9/13) [http://www.guardian.co.uk/technology/2013/mar/09/facebook-arrested-evgenymorozov-extract] Bruce Schneier, The Internet is a Surveillance State, (CNN.com 3/16/13) [http://www.cnn.com/2013/03/16/opinion/schneier-internet-surveillance/index.html?hpt=hp_c1] Page 18 of 67

19 Joe Patrice, Steubenville Rape Verdict: The Future of Criminal Law i n t h e E r a o f T T I W W O P, ( A b o v e t h e L a w 3 / 1 8 / 1 3 ) [http://abovethelaw.com/2013/03/steubenville-rape-verdict-the-future-of-criminal-law-in-the-era-of-ttiwwop/] The NYPD Juvenile Justice Division routinely monitors social media to investigate gang activity in an attempt to foil threats, but the source said the Canadians beat them to the punch in this case. Murray Weiss, High-tech NYPD Unit Tracks Criminals Through Facebook and Instagram Photos, (DNAinfo.com 3/25/13) [http://www.dnainfo.com/new-york/ /new-york-city/high-tech-nypd-unit-tracks-criminals-throughfacebook-instragram-photos] Thomas Tracy, Matthew Lysiak, Corinne Lestch & Bill Hutchinson, Canadian Cops Help Bust Queens Teen Who Allegedly Made Facebook Threat Against Richmond Hill High School Dean, (NYDailyNews.com 3/21/13) [http://www.nydailynews.com/new-york/queens/canadians-cops-bust-queens-teen-facebook-threat-article #ixzz2OGaHfCnr] Jamie Schram, Brooklyn Police Boss Marked for Death in Gang Thug's Facebook Post, (New York Post 2/11/13). [http://www.nypost.com/p/news/local/brooklyn/cop_in_gang_sites_ewj9pd8ndzmchrafp51zcp] Declan McCullagh, Feds Snoop on Social-network Accounts Without Warrants (Cnet 9/27/12) [http://news.cnet.com/ _ /feds-snoop-on-social-network-accounts-without-warrants/] A Texas woman is facing a felony retaliation charge after she allegedly posted a photograph of an undercover narcotics officer on Facebook and identified his job. (ABC News 10/15/12) [http://abcnews.go.com/us/woman-charged-felony-posting-undercover-cops-picture-facebook/story?id= ] Guy drinks a beer while driving his car, takes a video of it, uploads it to a file sharing site, and then is surprised when he's arrested. See, Lauren Russell, When Oversharing Online Can Get You Arrested, (CNN.com 4/19/13). [http://www.cnn.com/2013/04/18/tech/social-media/online-oversharing-arrests/index.html?hpt=us_c2] Peter Crusco, Ringing, Pinging and the Fourth Amendment, (NYLJ 4/23/13) Declan McCullagh, Apple Deluged by Police Demands to Decrypt iphones, (CNet.com, 5/10/13), [http://news.cnet.com/ _ /apple-deluged-bypolice-demands-to-decrypt-iphones/] Jacob Gershman, Ex-Marine Detained After Facebook Posts Files Suit, (Wall Street Journal, 5/24/13) [http://blogs.wsj.com/law/2013/05/24/ex-marine-detained-afterfacebook-posts-files-suit/] Page 19 of 67

20 Stephen Williams, Pennsylvania Homicide Suspect Posted Photo of His Shotgun on Facebook Before Shooting Girlfriend: Cops, (NY Daily News, 5/23/13) [http://www.nydailynews.com/news/national/suspect-posts-shotgun-pic-online-girlfriend-deatharticle ] Carol Kuruvilla, Massachusetts Woman Sends 'I'm drunk' Text Before I n j u r i n g T w o i n A c c i d e n t, ( N Y D a i l y N e w s, 6 / 4 / 1 3 ), [http://www.nydailynews.com/news/crime/woman-sends-drunk-text-car-accident-article ] Felicity Barringer, As Vandals Deface US Parks, Some Point to Online Show-Offs, (NY Times, 6/4/13) [http://mobile.nytimes.com/2013/06/05/us/as-vandals-taketo-national-parks-some-point-to-social-media.html?from=homepage] A man was arrested in Florida after killing his wife, posting a photo of her body to Facebook and confessing to the murder via a status update on his Facebook page. See, Joe Tacopina, Man Who Posted Photos of Wife s Body on Facebook, Confessed to Murdering Her Was a Self-help Author Who Specialized in ' S a v i n g M a r r i a g e s ', ( N Y P o s t, 8 / 9 / 1 3 ) [http://http://www.nypost.com/p/news/national/facebook_horror_xxhbltbw14pkwy2szumqzp] In late August 2013, a video titled Fastest Lap Around Manhattan was uploaded to youtube by a user known as AfroDuckProductions. The video shows the recording of a car setting a supposed 24 minute record for the fastest loop around New York City. The recording documents the ride from a camera placed in the windshield of a car. It can then be seen that the car speeds and swerves in and out of traffic in order to quickly move through the city. The driver s identity is impossible to discern merely by looking at the video, but police nevertheless took a 30 year old man into custody for the stunt. It is possible that the police used Manhattan s vast array of surveillance cameras and license plate scanners in order to identify the driver. See, Chris Welch, NYPD Arrests Driver Who Allegedly Uploaded Reckless Speeding Video to YouTube, The Verge (9/6/13), [http://www.theverge.com/2013/9/6/ /nypd-arrests-driver-who-uploaded-speeding-video-y outube] Matthew Cordle, 22, posted a video onto the website becauseisaidiwould.com in which he confesses to hitting and killing Vincent Canzani while driving drunk on an Ohio highway. The first portion of the confession shows Cordle with his identity shielded. However, as the video goes on, his identity is revealed. In the video, Cordle states My name is Matthew Cordle, and on June 22, 2013, I hit and killed Vincent Canzani. This video will act as my confession. Franklin County prosecutor Ron O Brien has seen the video and will now seek a grand jury in order to indict Cordle on aggravated vehicular homicide with an alcohol specification. Cordle states in the video that he is aware of the consequences of his internet posting, but has chosen to take action to raise awareness against drinking and driving. Michael Sheridan, Ohio Man Matthew Cordle Page 20 of 67

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